HL Deb 05 December 1978 vol 397 cc26-72

3.29 p.m.

Lord KIRKHILL rose to move, That the draft Scotland Act 1978 (Referendum) Order 1978, laid before the House on 14th November, be approved. The noble Lord said: My Lords, this order, which was approved in another place on 22nd November, is made under paragraphs 1 and 4 of Schedule 17 to the Scotland Act 1978. It appoints 1st March, 1979, as the date for the devolution referendum in Scotland, and prescribes the detailed arrangements. Its provisions follow generally those for the conduct of the EEC referendum held on 5th June, 1975.

The referendum in Scotland will be organised on the basis of regions and island areas. My right honourable friend the Secretary of State for Scotland will appoint a chief counting officer, who in turn will appoint counting officers at region and islands level. The chief counting officer will certify the result for the whole of Scotland, but the counting officers will be authorised by him to declare the area results locally. Since the 1979 electoral register comes into operation on 16th February, 1979, the referendum will be held on the basis of a register which is as up to date as possible. This is important, particularly in the context of the 40 per cent. threshold.

The general principle in the order has been to apply all the ordinary electoral law relevant to the conduct of a Parliamentary Election, modified as necessary. The procedure followed in the order is merely to list the provisions which are to be applied, and to set out in full only the necessary modifications. This makes for brevity and indicates clearly to returning officers and their staffs those aspects of the electoral law which it has been necessary to change for the purpose of the referendum. It has not, for example, been necessary to apply any of the provisions relating to candidates, their agents, expenses and nomination, since there are, of course, no candidates. Your Lordships will note that this factor, or a variation of it, accounts for a large number of the modifications.

The order comprises seven substantive articles and two Schedules. Article 1 provides that the order will come into operation as soon as it is made. Articles 2 and 3 deal with interpretation and the application and construction of the provisions specified in the Schedules. Article 4 fixes the date of the poll, 1st March 1979, and the hours of polling. Article 5 enables my right honourable friend the Secretary of State for Scotland, to make arrangements for the presence of observers at the local counts. Article 6 ensures that absent voting facilities will be available in the normal way for those entitled to vote in the referendum, and Article 7 provides for the expenses of returning officers to be defrayed as administrative expenses by my right honourable friend the Secretary of State for Scotland.

The Schedules apply and modify the existing electoral law as appropriate. I do not think the contents of the Schedules call for further explanation since they are essentially technical. But I should perhaps mention that eligibility to vote in the referendum is determined by paragraph 2 of Schedule 17 to the Scotland Act. It is not, therefore, a matter for this order. Those who will be able to vote in the referendum will be all those who would be eligible to vote in a Parliamentary Election in Scotland, and those Peers who would be eligible to vote in a local government election in Scotland.

I think your Lordships will wish me to say something about what has become known as the "40 per cent. hurdle", although this is, strictly speaking, not a matter directly associated with the contents of this order. It is important to keep in mind that the referendum is advisory to Parliament. Parliament will have to approve the next effective step, which might be the first commencement order under Section 83 of the Scotland Act or a draft order under Section 85 to repeal the Act. The outcome of the referendum determines only whether or not the Secretary of State has to lay an order under Section 85. Section 85(2) of the Scotland Act provides: If it appears to the Secretary of State that less than 40 per cent. of the persons entitled to vote in the referendum have voted 'Yes'…", the Secretary of State is to lay before Parliament the draft of an Order in Council to repeal the Act. The expression "entitled to vote" poses difficulties. I wish briefly to explain how the Government intend to deal with them.

My Lords, the basic qualification for entitlement to vote in the referendum is an entry on the electoral register operative on that date. As I have explained, this will be the register which will come into operation on 16th February, 1979. The total number of names on this register is, however, not the number entitled to vote on any given date. To obtain the number entitled to vote in the referendum on 1st March 1979, deductions from the total number of names appearing on the register are necessary for certain groups of people.

The first group is people who are not yet of voting age on 1st March 1979. The 1979 register includes the names of 17-year-olds whose 18th birthday falls within its period of validity; that is, before 16th February, 1980. But those who have not yet reached 18 by the date of the referendum are not entitled to vote in the referendum. A deduction has therefore to be made for all those whose names appear on the register but whose birthdays fall after 1st March 1978. Electoral registration officers will be able to provide the actual number involved but will not be able to count them until the 1979 registers are available to them. However, it is expected that the figure for next year's register will be of the same order of magnitude as the figure for the 1978 register, which has been estimated to be just under 55,000.

The second group is those who were alive on the qualifying date for entry on the register (10th October 1978) and whose names appear on the register but who have died between this date and 1st March 1979. It will be possible to make a reasonable estimate of the deduction for deaths on the basis of information held by the Registrar-General about actual deaths in Scotland. An estimate relating to a referendum on 1st March 1979 cannot be made at this stage; but I can inform your Lordships that, if the referendum had been held on 1st March this year, the deduction would have been of the order of 26,000. I am advised that the deduction for next year is likely to be of the same order.

The third group are those who are detained in a penal institution and who are legally incapable of voting. This means that there should be a deduction for convicted prisoners whose names are on the registers. Any deduction here would be small compared with the deduction for 17-year-olds and for deaths. But I am not yet in a position to say whether it will be possible to make an estimate of this deduction.

The final group is those whose names appear on more than one register in Scotland. Such people are entitled to only one vote and their second registration is not an entitlement to a second vote. The estimate of a deduction for this category poses some difficulties. It is not an offence for a person to be registered for more than one address and there is no central check or facility for matching of names between registers. What constitutes "residence" for the purpose of registration is decided by the individual electoral registration officer on the facts of the particular case.

Discussions which officials have had with representatives of the Scottish electoral registration officers indicate that registration at more than one address is likely to occur for three categories. First, students at universities and training colleges in places away from their normal home addresses; secondly, young hospital staff who occupy residential accommodation in hospitals; and, thirdly, electors who have two homes. The first and second of these categories are likely to be the largest. The current figure for the number of students receiving an award through the Scottish Education Department and living away from the parental home in Scotland is about 28,000. This figure is likely to be a good estimate of the total number of students with two addresses in Scotland and could thus be taken to represent the upper limit of the number of students in Scotland who might be registered on more than one register. The upper limit for those living in hospital accommodation whose names might appear on two registers is estimated to be about 5,000. The Government are, therefore, examining further what might be a reasonable deduction for multiple registration.

I hope that this brief account I have given your Lordships will show the impossibility of arriving at a precise, counted figure of the persons entitled to vote in the referendum. I do not know if those who pressed the 40 per cent. provision on the Government took into account all the complexities and problems which are involved. The fact is that the electoral registers were never intended to serve the purpose of a test of this kind. They are intended to record a basic entitlement to vote during the period while they are current. For normal electoral purposes it is more important that everyone who has such an entitlement should appear on the register than that the number of names should provide a precise count of entitlement on a given date. The 40 per cent. test is therefore imposing on the registers a job for which they were not designed.

Nevertheless, I hope that my explanation has demonstrated what might be done. The Government will, of course, listen carefully to any views expressed on this point, but I hope your Lordships will keep in mind that the 40 per cent. test does not of itself determine the final decision on the implementation of the Scotland Act. This will fall to Parliament. With that background of explanation, I commend the order to the House.

Moved, That the draft Scotland Act 1978 (Referendum) Order 1978, laid before the House on 14th November, be approved.—(Lord Kirkhill.)

3.42 p.m.


My Lords, we thank the noble Lord, Lord Kirkhill, for explaining the provisions in this order, which, as he will know, we would not seek to oppose. I shall make some comments which will indicate that we had expected there to be more in the order or more explained by the Government. This is the fourth and last debate during the period of the past two weeks on what is to happen on 1st March taking into account both Houses of Parliament and the Wales and Scotland Acts, where the provisions in the related orders are similar. I shall therefore concentrate on certain points which still need emphasis or clarification. Because there was no guillotine in your Lordships' House, we were able when it was before us, to examine the parts of the Bill governing the conditions in which the referendum is to be held. By our Amendments sent back to another place we were able to give an opportunity of discussion following the very curtailed consideration which they were able to give on the first round.

Among other things, we proposed that there should be a minimum period of six weeks for the campaign, and that was retained when the Bill went to the Commons. We are glad that the Government are observing that minimum by bringing these orders before Parliament before Christmas. I believe that that time will be needed. I am still finding—as I expect are other noble Lords in the House—that people in Scotland there think the referendum is on a different question. Many think that the question on the ballot paper is: "Do you want devolution?" Of course, it is not. Others think it is: "Do you want an Assembly in Scotland?" Again, that is not the question in the referendum. The question is: "Do you want the provisions of the Scotland Act 1978 to be put into effect?" That is the question that will be on the ballot paper and it is entirely different from that which many people in Scotland expect and indeed from what the reports in the Press would indicate.

The question amounts to asking: "Do you want a particular system contained in this Act to be established as a major constitutional change in Britain?" A person can be in favour of devolutionary change and yet be utterly opposed to this particular system. Again, one can be in favour of an elected Assembly in Scotland but be opposed to doing it in this way. So it is important that there should be a full period for the campaign in which people should discover what is the question on which they are to vote, and also what is in this Act. It will not be easy to discover what is in the Act: it is an expensive document to buy. Access to it in a public library will not be very convenient or easy if large numbers of people wish to seek it out.

Whatever one's views on the proposals in the Act, all will be concerned—or they certainly should be—that the electors should know what is the question and also what are the chief elements in the Act. They should know that it is not a general question, and they should know the principal consequences if they decide to support the Act. I shall give my own view, which many noble friends share, very briefly. The present system could be improved by carefully thought out changes, but the scheme in this Act is a dangerous way of going about it. It is dangerous to the unity of Britain. I should like to see consideration of changes with a view to a broad consensus to be reached on an all-Party basis, if possible. My right honourable friend Mr. Francis Pym has spelt this out and therefore I mention it briefly.

For nearly four years, I was the chief executive, as Secretary of State, in the widely devolved administrative system at present operating in Scotland. I certainly would not defend it as perfect: it might have been appropriate 30 years ago but it is less appropriate now. Any new proposals must be generally acceptable and workable. Without repeating what was said during the passage of the Bill through the House, I must reiterate that this Act contains serious faults. The campaign period should enable this to be brought out. With the Wales Act it tries to deal with Scotland and Wales as if they were provinces in a federal system without any federal machinery at the centre and with over four-fifths of the population of the rest of the country still being governed as a unitary State. That is why no way can be found to solve the problem of Scottish members of Parliament voting at Westminster on domestic subjects in England, but having no vote on the very same subjects in Scotland. The situation so created could lead to confusion and conflict and to dangers to the unity of our country.

There are at least two other serious defects: first, there are two executives, for the Secretary of State for Scotland still keeps a considerable number of his present functions, including, for example, agriculture. The second defect is the block grant system. It is virtually guaranteed that a new Assembly will always say that it is not being allotted enough money. The Assembly will not have to raise any money itself. Here are the seeds of serious conflict between Westminster and Edinburgh. The SNP does not want this Act. The noble Lord, Lord Belhaven and Stenton, who was the SNP speaker in this House, made clear in our debates his intense dislike of the Act. The SNP simply regards it as a stepping stone towards its aim of breaking up Britain.

The SNP does not want the system in this Act to last for more than a very short time. If it breaks down, it will help the SNP with its aim. Let there be no ambiguity about what its objective is: it is that parts of Britain should adopt a system like Scandinavia, retaining the Monarchy but each separate part having its own defence forces, embassies and representation at the United Nations. That is not what the Front Benches in either House of Parliament want nor what the large majority of the other Benches in either House want. So the time between now and 1st March will be needed to explain these points.

The proposals in the order to help establish the number of electors on the roll who are still alive and eligible to vote on 1st March are broadly acceptable to me. As the noble Lord indicated to us, they are there to establish what 40 per cent. of the electorate on 1st March will be, as a figure—not an absolutely precise figure but as near as is necessary. I say "necessary" because there are still two stages for decision after the referendum, whatever the result. The Secretary of State has the discretion, through the words which were quoted by the noble Lord: if it appears to the Secretary of State to lay an order either to repeal the Act or to lay the first order of its commencement. That brings us to the second stage: whichever kind of order is laid, Parliament can reject it and therefore has the final say. Thus the referendum is advisory.

As regards deaths, they can be worked out exactly if one wanted to do so. Every death is registered in Scotland and, given time and a considerable amount of trouble, I am told that sum could be done exactly, or certainly very nearly exactly. As regards the double registration, especially of students, I agree that must be an estimate; but the numbers involved in all this are very small compared with the total electorate, and so I certainly would not cavil at what is proposed, especially when there is this discretion, first to the Secretary of State and then to Parliament, as to what is to be done after the referendum.

There is still one important matter which has not been satisfactorily dealt with by the Government; that is, the role of Ministers and the public service as a whole in the referendum, and the possibility of invisible expenditure being on one side or the other—expected, so far as the Government and public Service are concerned, to be on the part of the "Yes" campaign. That could happen simply through the ordinary services of the Government being available and being used. We have had only one referendum in this country—that on the EEC in 1975—and therefore we must compare what is being proposed now with what happened then. Both the Secretary of State and the Under-Secretary of State, Mr. Ewing, in another place and the noble Lord again today referred to the 1975 EEC referendum as a precedent; and Mr. Millan said on 22nd November at column 1270 of Hansard that: this Order follows substantially the equivalent order in 1975". But there is one field in which the conditions are very different in the proposed referendum for 1st March from the one in 1975; that is, sources of finance and accounting for expenditure, including expenditure on services. In 1975 a grant of £125,000 was made to each side, but they were also required to account for all the additional finance which was contributed and to state from where that finance had come. For example, those concerned with the "Yes" campaign, which was the organisation called "Britain in Europe" received, according to the accounting, the sum of £996,508 from contributions additional to the Government grant. That was nearly eight times more than the grant.

My point is that they had to account not only for the grant but for all that other money which they received. They had to account for it in a document which was published as a White Paper, and the names had to be given for every contributor of a sum of more than £100 and for every recipient of a sum of more than £100. That was for a period which was stated to start on the 26th March, about 10 weeks before polling day in 1975. The results were published as the White; Paper, Cmnd. 6251, which of course I have with me. I of course speak with some familiarity with the subject because at that time I was playing a very active part in the "Britain in Europe" campaign. That White Paper contained lists and accounts and they had to be certified by the Comptroller and Auditor-General after his examination. As I have said, most of the expenditure for "Britain in Europe" was not from the Government grant.

All the expenditure coming on the 1st March in Scotland is bound to come from contributions of that kind, because there are no Government grants on this occasion. But in addition to the grant, the Government in 1975 also carried out certain services. They published free for each side the equivalent of a manifesto. None the less, during that referendum Ministers took part, apparently, in ways which were regarded as additional to their normal duties, and where the individual expenditure came to more than £100 it is recorded in the White Paper. Thus one finds on page 11 the names of the right honourable gentlemen Roy Jenkins, William Rodgers and Roy Hattersley, who were all listed as having received sums of money for travelling and other expenses during the campaign. On page 12 one finds that the noble Lord, Lord Harris of Greenwich, received £316 for organisation during the campaign. They were all Ministers at the time, but these were ways in which they took part in the campaign and money was used from the contributions which had come forward, and, quite rightly, they were accounted for. My expenses did not come to £100 so I do not appear in that list, but I would have otherwise.

My point of concern can be illustrated by putting this question to the noble and learned Lord, because I believe it is he who will reply to this debate: if, during the referendum in Scotland in the coming weeks, the noble Lord, Lord Kirkhill, were to carry out organisational functions similar to those which the noble Lord, Lord Harris, carried out in the 1975 referendum in organisational matters, how is anybody to know about that expenditure—the £316 or, with inflation, £500 today? The fact that there is to be no accounting in this referendum, which is only the second ever held in this country, will make it difficult to perceive the amount of effort supporting the "Yes" campaign coming from Ministers and those working for Ministers.

The rules at General Elections for Ministers exist. For example, for political meetings, canvassing and similar activities during a General Election Campaign period, no Press releases come from public sources: they are compiled and put out for Party political meetings by the political offices. There is no official transport provided or travel paid for in respect of meetings which are purely in connection with the Election unless they happen to coincide with an official engagement in the area on the same day. The Press officers and secretaries working with Ministers at Election events, canvassing and so on, are Party officials and not civil servants. Ministers, of course, can, and do, go on expounding the Government's views on the relevant subject before the electorate. It is not what they are saying but the place in which they are saying it, and the context in which they are saying it, which governs the fact that public money is not spent on the political side of their work during an Election.

Thus, a Minister speaking at a political meeting during a General Election period has his expenses paid for by his Party or by some other outside source. If he is speaking at a referendum meeting, then we submit that his expenses ought also to come from some source other than public funds. That is clearly what happened in the case of the EEC referendum in 1975, as is apparent from the White Paper from which I have just been quoting. The same rules should apply to Ministers, and also to any use of the public service in the referendum to be held on 1st March 1979. I should like to give notice to the Government Front Bench that we will be watching what is happening, and if any doubts arise we will be endeavouring to raise in this House during January and February, however late at night it may be and in whatever form—for example, Unstarred Questions—any doubts we may have about what is going on during the referendum campaign.

This is a part of the referendum which was covered very thoroughly in 1975, in the only referendum that has ever been held before. It is missing from this one by a definite decision of the Government. That being the situation, the Government must do everything possible to make it clear that the Government machine will not be operating with invisible expenditure on behalf of either one side or the other. For the result of this referendum in Scotland to receive the full respect and recognition which it should receive, it is essential that there should be no suspicion of any invisible Government subsidy to one side or the other.

4.2 p.m.


My Lords, I intervene at this point although my name was inadvertently missed out of the list of speakers, due, I think, to the fact that the Government Whips' Office thought that I spoke only on poetry and allied subjects. But I should have wanted to speak anyhow, because I notice that the list is wholly hostile to the Act, and I suspect that speaker after speaker will rehash the arguments which we have already heard on so many occasions for and against the Act itself. So, before coming to the order, I should like to put one point in favour of the Act itself. I think it is true that the question is: Do you want an Assembly or not? If we do not get a Yes vote, then I do not think that there will be an Assembly or the form of devolution which we have all been talking about, and which we all say we want. What we will get, then, is another resurgence of the SNP, with the terms dictated by them and not by Parliament. That is why we on these Benches support the Act and will campaign for a Yes vote in the referendum. We do so not because the Act is perfect—it is very far from perfect—but because it is a way forward to devolution and, in our view, will ensure the unity of the United Kingdom and not its break-up.

To come to the 40 per cent. deadline or the 40 per cent. insertion, whatever one cares to call it, that is, of course, a scandalous move conceived with great malice towards the Act and supported in ignorance of the effect. I am sure that if a good campaign is run, the arguments will tell with the Scottish people and we will get over the 40 per cent. But there are things which may act against us very badly. I do not want to go into all the points of the order. I think that the Government are doing their best to ensure that the 40 per cent. is fair. They have already done a lot of research and, as the noble Lord, Lord Campbell of Croy, admitted, it appears that their estimates will be fairly near the mark and we will at least get a fair 40 per cent.

I do not object to 1st March as a date—the sooner the better. It is soon after the register becomes effective, and your Lordships will be pleased to know that we often have good weather in Scotland, even on 1st March. But we have on occasions had very bad weather on 1st March. I am one who has suffered very badly in an election held at that time of the year in the North of Scotland, when many of my constituents, who, happily, might have supported me, preferred to stay at home and look after their lambing ewes; and who is to say whether that was not a very much better thing to do than supporting me at the polls? Nevertheless, I thought that it slightly upset the result.

We could get a very savage 1st March, and that is why I was very glad to hear the Minister say, and also to read that in another place the Secretary of State stressed, that the referendum is advisory and that the final decision rests with Parliament. All I should like to say is that I hope that this will be taken note of, and that the Minister will reinforce it. I can foresee an occasion where there might be a very large negative No vote—that is, people who do not vote because of bad weather in Scotland—and, if the proposition is rejected because of this, the correct thing is to put the Act forward and for the Government to act in that light.


My Lords, will the noble Lord offer some advice as to how one can assess those who stay away from the poll because of bad weather, and those who are completely indifferent to the whole proposition?


My Lords, if the noble Lord can tell me how you assess the feeling of a country if a lot of people vote Yes, and a lot of others are indifferent and stay at home, then that is a question that he can answer himself. I should have said that if you have a strong 50 per cent. Yes vote, that is an indication which the Government should accept. We are saddled with the 40 per cent. referendum, and if the noble Lord knows anything about politics at all, which I suspect he does, and if he has done a lot of campaigning, he will know that bad weather affects the Labour Party's vote very badly. Therefore, I am surprised that the noble Lord interjected with that question, when the answer should have been obvious to one of his Party.


My Lords, are we to understand the noble Lord's words to mean that he will accept the guidance of the referendum if it comes down as he wants, but will use the excuse of weather if it does not?


My Lords, the Government have stressed that the referendum is advisory. If, for example, we had an appalling 1st March and we did not get the 40 per cent., I should have thought that Parliament in its wisdom would look at the order which the Secretary of State must lay before them, and they could reject it. That, I should have thought was fairly simple. It appears to me that, with this proviso, the order is right. Parliament must look at the result and the campaign can be set up. Also, I think that we ought to have had an explanatory leaflet. I should like to see money voted to the Yes and No sides, but I am prepared to accept that people on the Yes and No sides will have to find their own money and do their own campaigning. I have no doubt that the noble Lord, Lord Kirkhill, will give us an answer to the question put by the noble Lord, Lord Campbell of Croy, on this point, and I should simply like to say that we support the order.


My Lords, before the noble Lord sits down, would he like to dissociate himself from the vociferous campaign by a very small number of people, who have been trying to tell the people of Scotland that if they do not want an Assembly they do not have to go out and vote, because their unregistered votes will automatically count as Noes? Would he like to dissociate himself from this campaign, which is obviously intended to minimise the No vote and strengthen the arguments of the Yes people, after they have failed to get a convincing majority in the referendum?


My Lords, I did not quite understand the question. But, in our view, it must be right that people who do not vote count as voting No.

4.10 p.m.


My Lords, perhaps my noble and learned friend could tell me why the Government did not arrange, as the other place did, for both referendum orders to be discussed on the same day. I am not a full-time politician. Therefore I had to decide whether to come here last Thursday or today. I imagine that the same applies to certain other noble Lords. Therefore, I believe that the Government had a rather easier ride on the Wales order than they should have done.

That being said, I wonder whether my noble and learned friend could also enlighten me on one question with reference to dual registration. Is it a quirk of our electoral system that students, for instance, and those with two homes should have two votes? This seems to be a rather curious feature. That said, I welcome this order, and the one for Wales, remembering, none the less, (and never forgetting) that neither the Scotland Act nor the Wales Act would have got through Parliament but for the promise of these referendums.

As the noble Lord, Lord Campbell of Croy, said, the outcome of these referenda will depend to an extent upon the honesty, fairness and clarity with which the issues are put to the electorate. I have an enormous respect for the ability of ordinary people—that is, people who have not had the benefit or the opportunity to study the subject as we have—to guess when they are being led astray. But it seems to me that it has been a feature of the Government's case so far that they have not been forthright about the likely consequences should either of these Assemblies come into being. For instance, the Government have hardly yet attempted to answer the criticisms in another place of my honourable friend Mr. Dalyell. He produced a long list of criticisms on the 22nd of last month. The Government ignored him. They have been very long on minutiae, but objections of principle have been drowned in details, or they have been ignored altogether.

I give another example. The largest claim being made for these Assemblies—this is the propaganda of the moment—is that they will somehow increase democracy in Scotland and Wales. But what the electorate have not been told is that there are a large number of ways in which institutions could be made more democratic, or public participation could be increased, if only there were the political will to bring it about. It is absurd to suggest that the whole panoply of setting up national Parliaments is necessary to achieve this. In any case, there is no certainty that they would, and it should not be pretended that they would. However, the people in Scotland and in Wales are being tempted, by the illusion that they will get increased democracy, to forget the reality that, for example, we would get decreased democ- racy in England and at Westminster should these Assemblies come about. The campaigners for these Assemblies from both major Parties are just not yet aware that they are getting themselves out on limbs which they are about to saw off, to the delight of the Nationalist Parties, who can hardly believe their luck and who are not saying much in consequence.

If the Government present the case for these Acts fairly, without the flannel in which it is all being wrapped at the moment, we shall get a large "No" vote in the referendums. I should not mind if Ministers spoke in that vein at the taxpayers' expense, but I am tempted to add that at the very least the Government could say that they were sorry that they could not do better, that they have had a lot of clever people studying the subject for years, and that the best they could come up with is this incredible tangle. The reality is that these Acts have been begotten out of Scottish and Welsh nationalism by English condescension, and they equal humbug.

It is not just on that account that shall help in the campaign against them. Perhaps I need take only one reason, though it may not have been advanced in these debates in quite this way before. I believe in having a Labour Government at Westminster. Even with the swings which occur every now and then, there is a strong chance that for some or even for most of the time there will be a Labour Government. But if these Acts go through, I believe that no Labour Cabinet or Government which comes into being without having a majority in England is going to have authority in the country in respect of those matters which have been devolved to the Assemblies. That is the implication of the West Lothian question. The Government must make that clear and must not pretend that it does not exist, or that it does not matter, or that it will go away if they do not talk about it.

I end by saying that I do not find it easy to speak out against either my Party's official line or the Government which I support. However, I am of the conviction that the voices of my honourable friends in another place who have spoken out against the formation of these Assemblies will be heard, and what we shall endeavour to do is to ensure that they are heard before rather than after the referendums.

4.17 p.m.


My Lords, we are debating the order which makes provision for the conduct of the referendum under the Scotland Act which, after prolonged debate, was passed by both this House and another place. I should like to open my remarks by thanking the noble Lord, Lord Kirkhill, for his introductory remarks, and my noble friend Lord Campbell of Croy for going so fully into matters. The complexities which my noble friend has disclosed will, I am afraid, call for a good deal of study on my part, and perhaps even more on the part of some of those who will record their votes later on.

This is the second time in the course of this present Parliament that a referendum has been introduced into our Parliamentary proceedings, when previously it had no place there. From that, it would seem to emerge that Parliament has, in some measure, surrendered its supreme position as the lawmaker and the virtual ruler of this country, a position which the nation has accepted at least since universal suffrage was introduced. The introduction of a referendum must surely weaken the authority of Parliament. If that is true, let us hope that we have no more of them.

The introduction of a referendum under the Scotland Act can only mean that the Government are not quite sure of themselves and are accordingly seeking the opinion of the electorate. They must be assured that the ties which bind us to the other parts of the United Kingdom, a partnership which has brought us safely through two world wars and which has been of great benefit to all of its members for close on three centuries, are in no way weakened. We are, as has already been said, one. We are British, and so I am convinced we wish to remain. But the Scottish people know very little or, indeed, nothing as to the provisions of the Act.

Here let me ask for the indulgence of your Lordships, for today I speak more from my heart than from the paper which I hold in my hand. Apart from the 22 years that I served in the Navy, my life has been spent entirely in Strathclyde. I live in a mixed community—a community composed of farmers, farm workers, miners, motor and agricultural engineers and a few professional people. I move freely among them and, as I have said, I find that they know little or nothing of the Act or how it will affect them. I am somewhat sorry to say that the truth is that the people who live round about me are fed up with politics and with politicians. They have largely stopped going to political meetings; they are tired of the volume of new laws, Bills, orders, involving, as they see it, more and more demands from Government agencies, for more and more information and more and more figures to be filled in on returns. They deeply resent unsolicited and unannounced calls from officials demanding information or to investigate their books and accounts. The unfortunate little businessman is in fact overwhelmed and overworked.

To assume an increase in officialdom is like waving a red rag to a bull. While the electors know little or nothing of the provisions of the Act, it must in a democracy, be the duty of the Government to tell the people truthfully and without political bias just what this Scotland Act will mean to them, and I intend briefly to try to enlighten myself and also those who, later on, will vote. Under the Act much of the work which for so many years has been done at Westminster by 71 Scottish Members of Parliament is to be passed to 150 members of an Assembly sitting in Edinburgh. What is to be gained from that change? It is claimed that it will ensure better democratic Government and will bring decision-making and power closer to the people. Your Lordships will remember that the same words were used in regard to the new local government arrangements now in force and that they have proved to be entirely false. Further, under these arrangements, people in trouble will have difficulty in knowing whom they should turn to for help—to their M.P., to their regional councillor or to their district councillor—a change which is neither more democratic nor does it bring people nearer to power and to decision-making.

As might be expected, the cost of local government has increased, apart altogether from inflation, and services provided are no better and no more efficient, if, indeed, they are as good. I hope that when the electors come to record their votes in the referendum, voting "Yes" for the Assembly or "No" against it, they will remember that more authorities with more members amd more officials and more employees must inevitably result in greater demands for money. The truth of that the electors should now know, for they will have received notice of the increase in the rateable valuation of their homes, their shops, their buildings and their business premises, and the consequent increase in the sum that they will have to pay in rates.

However, the electors must not think that the demands of the local authorities will be the end, for if this Assembly is set up the expenses will have to be found from the electors. In that connection, I should like to issue a word of warning. For many years we in Scotland have received more from the United Kingdom common purse per head of population than have the English per head of population, but let us not take it for granted that, if we have an Assembly, that gratuity will be continued. Also, let us not take it for granted that we shall not be called upon to pay the cost of the Assembly.

I should like for a moment or two to look at what these costs may amount to. There is the cost of the building in which the Assembly is to be housed—the Royal High School in Edinburgh, bought for that purpose—and the total cost of acquiring, reconstructing and equipping it was estimated in November last year at £3¼ million. But that of course is not all, because part of St. Andrew's House is also required and the cost of reconstruction there is estimated at over a million pounds, giving a total of £4¼ million in all. Then there are the running costs to be considered: salaries and related costs of the members and staff will be £6¾ million, and then there is the cost of additional civil servants, 750 of them, amounting to another £6¼ million, making £13 million in all. From these figures, it would seem to follow that the cost of the Assembly up to the end of this first year will be nothing short of £19¼ million, and I would remind your Lordships that that estimate is at 1977 prices, since when costs have risen considerably.

I think it is fair to ask the Government what Scotland is to gain from this considerable expenditure of money. Not so long ago, Scotsmen all over the world were known and respected for their care of money. That really meant that they demanded a reasonable return for anything they spent. I simply cannot think of any worthwhile return that can be expected from the figures that I have given. Surely then; will be enough talk from the regional and district councils without adding to that the outpourings from 150 members of the Assembly. I can find nothing to Scotland's benefit in the Scotland Act.

Until more or less recently, our Scottish affairs were run by a small Department in the Home Office in which I understand the Lord Advocate played a leading part. Then in the 1920s we were given a Secretary of State with a seat in the Cabinet. That was followed in the 1930s by St. Andrew's House, which, to put it mildly, is a building of considerable size, but recently it has overflowed into an additional St. Andrew's House. Over and above that, there are numerous houses in the West End of Edinburgh which claim that they are part of the Scottish Office or in some way connected with it. It seems to me that it is high time for us to call a halt. It is my hope, as I call a halt, that, for the future of my country and for the happiness of its people, when the electors cast their votes in the referendum, they will give a resounding "No".

4.29 p.m.


My Lords, at the outset of my observations I wish to declare an interest for I am, as it always seems to me in these matters for my sins it must be, the joint chairman of an organisation called "Scotland Says No". This organisation will be concerned to campaign vigorously between now and 1st March next year to secure that the Scottish people do indeed say, No, to the question which is posed in the referendum. This is a non-Party organisation containing members of all Parties—not many in the Liberal Party and even fewer in the Scottish National Party—but, more importantly, as I see it, members of none at all.

May I, first of all, say a word about the background to the referendum, and I hope that the hash which I serve up, or re-hash, as the noble Lord, Lord Mackie of Benshie, fears, will not be too offensive to his taste. The noble Lord, Lord Kirkhill, emphasised in his admirable presentation of this order to your Lordships that the referendum was, of course, advisory, that the Government are seeking the advice of the Scottish people upon this question. That being so, it is of course all-important that the Scottish people should be fully informed about what is involved in the question presented in the referendum.

Here I would, if I may, reinforce—though he presented it in such a way that no reinforcement is necessary—what the noble Lord, Lord Campbell of Croy, said. The question in this referendum is not, "Are there legitimate aspirations of the Scottish people which from time to time have been overlooked or neglected since 1707 in the working out of our partnership with the English, which is the Act and Treaty of Union"? The question is not, "Are the Scots entitled to now and then be a little fearful of a loss of national identity from the way in which the Act and Treaty of Union work?" Nor is the question, "Do you, the people of Scotland, want an Assembly with another 150 politicians in Edinburgh?" Nor is it, as the noble Lord, Lord Campbell of Croy, said, "Do you want devolution?" The question upon which the people of Scotland will have to reflect is the question of whether or not they want the provisions of the Scotland Act to be implemented. And the answer to that question depends upon their reflecting as profoundly as may be between now and 1st March upon the question of whether the provisions of that Act will significantly promote the better government of Scotland.

It has been lost sight of in all our debates that the onus of proof in this matter is surely upon the Government, and it is a burden which throughout the debates here and in the other place they have signally failed to discharge. Surely no one who has listened to the debates in your Lordships' House, or who has read and listened to what was said in the other place, can think that they did discharge that onus. And everyone knows that, had there been a free vote and had there been no guillotine, this Bill would never have seen our Statute Book. There is no doubt about that. There is no significant body of opinion which has commended this Act as a legislative masterpiece. I do not think that even the noble Lord, Lord Mackie of Benshie, suggested that. He rather suggested that it would be a stepping stone for something else. That is stability for you in your constitutional affairs! I do not think any significant body of opinion in Scotland or indeed in England would have marked this piece of legislation even as satisfactory.

The truth is that of course it will not promote better government of Scotland. How could it? Look at the ridiculous Schedule 10. I know I have said this before and I make no apology for saying it again and I have no doubt that I shall bore my friends—not your Lordships, because this is my last chance here—by saying it again between now and 1st March. I searched in vain for a word to describe this absurd Schedule 10, this enormity, as I see it, unfit to have a place in the constitution of a self-respecting country. I searched in vain, and it was only the other day that I remembered a favourite word of my old Scottish-Irish grandmother. The word was clamjamphrie. It is in all the best dictionaries, and as she used it it meant a conglomeration or concoction of people or things, some good and others bad, but such a confusion as to be a nonsense. That is what Schedule 10 is. It deals with all sorts of things. Not many people have looked at it, as we have had to do in your Lordships' House, line by line. It deals with everything. It deals with matters pertaining to the appointment of judges in the Supreme Court of Scotland, with the control of stray dogs, and a whole range of things in between.


My Lords, would the noble Lord forgive me for intervening? The word he has used, I am sure, would make a very good headline. Would be be so obliging as to spell it?


Not now, my Lords. This is the schedule that spells out the devolved matters which are to go to our 150 new politicians, all fixing their own salaries—no 5 per cent. for them. This is the schedule which will be backed by an additional 1,000 bureaucrats in a city which already has more bureaucrats than Brussels. And it is a nonsense, and that is only one reason why this Act will not work. The others can await the referendum campaign.

I should like to make one last point before I sit down. Those of us who oppose this Act repeatedly asked the Government to tell us in what significant way it would promote the better government of Scotland. We never had an answer which I imagine went any way towards satisfying those of your Lordships on both sides of the House who have grave reservations about this Act. All that the noble and learned Lord said, certainly on the Second Reading, was that he deprecated—and he said it, of course, with all that skill with which we became familiar—the negative attitude of the opponents of this Act. My Lords, ours is not a negative approach. I should have thought that the noble and learned Lord, who is something of a philosopher as well as a great lawyer and a mightly fine advocate, would appreciate that behind every negative there lurks a positive, and the positive lesson we shall be asking the people of Scotland to teach this Government—and I hope that Governments of other Parties will learn from it—is that what we want is good government rather than more government; we only want more government when we can be satisfied by our rulers that that more government will be better government.

That is all I wish to say on the background. May I add a very brief word on the question of the conduct of the referendum. The noble Lord, Lord Strathclyde, to whose speech I listened with great interest, touched upon this aspect. I would add to what he said by reminding the Government that of course Party political activists are a very small proportion of the people. The political Parties are more and more being seen as rather unrepresentative of ordinary people. They are being seen as groupings, perhaps a little detached from the real world in which ordinary men and women work and play; minority groupings in some respects perhaps, sometimes, paradoxically enough, having more in common with one another than they appear to have with the ordinary people in between.

I think that it would be bordering on the outrageous if the campaign were to be conducted like an election, dominated by the political Parties. I saw a touch of that in what was said in the other place about observers. It was said that the responsible officer, seeking observers at the count, would be told to go to the political Parties. However, this is a referendum for the people, not for the political Parties. In this connection, too, there is the question of broadcasting time. A proper balance must surely be ensured as strictly as at an election, but that balance should be not between the political Parties but between the people who think we should say "Yes" to the question and those who think that we should say "No". I should like to hear the Government's views on the balance of broadcasting time. Surely it ought to be distributed not between the political Parties but between the people who say "Yes" and the people who say "No", and surely that balance should be jealously guarded.

I hope that the Government will answer the questions that were raised in the other place about what will happen as regards normal Party political broadcasts. I do not wish to personalise the matter as perhaps Mr. Tam Dalyell did in the other place. I was surprised that he said what he did, which no doubt your Lordships will have read, but my information is that it was well justified. What will the Government do to secure a fair balance in order that the Scottish people may give them the right advice which apparently they need as to how Scotland is to be governed?


My Lords, I should like to ask the noble and learned Lord a question. In view of the anxieties which he has expressed about minority Party activists, I take it that he is in favour of a referendum which will consult all opinion?


My Lords, I accept the need for a referendum and I spent a lifetime as a Party political activist. Until 1970 I was very much a Party political activist. Without advertising the organisation of which I am joint chairman, may I just say that we have, as I have already said, members from all Parties and from none. We have the support of ordinary workers. It would surprise the noble Lord, Lord Mackie of Benshie that we have some farmers, even though agriculture is not devolved. We have the agreement of many trade union officials who were reluctant to come out openly because of the official line which the STUC was—as I think, and I may be wrong—misled into taking. We have some open support from trade union officials. They have gone off with Tam Dalyell and his Labour Party campaign. We do not complain about that, although I think that we should co-ordinate our activities.

Beyond all that, the people who have expressed support to us are people like Sir Charles Wilson, Principal and Vice-Chancellor of Glasgow University until 1976; Professor Thomas Wilson, who presides in the Adam Smith Chair of Political Economy at Glasgow University; Sir W. Ferguson Anderson, President of the British Medical Association from 1977 to 1978 and at present the Professor of Geriatric Medicine at Glasgow University. I see that the noble Lord, Lord Mackie of Benshie, smiles at that. Sir Ferguson told me that one of his concerns was the effect of these provisions in the Scotland Act on the welfare of old people. That is what he said. As regards these matters, he is an authority, second to none and with an outstanding reputation not only in Scotland but throughout the world. The noble Lord, Lord Mackie of Benshie, laughs because Sir Ferguson is a Professor of Geriatric Medicine. I have no doubt that he will say that we have Establishment figures.


My Lords, I was not laughing at the noble Lord's example. It was a moment of light relief in a long desert of rehash.


My Lords, I am sorry if I am being unduly sensitive, but I am trying to sit down as quickly as I can. We have, in addition, the support of Mr. James Sutherland, who was President of the Scottish Law Society between 1972 and 1974. Therefore, we have a broad spectrum of support. I should like to ask the Government, as regards broadcasting time and the conduct of the campaign, whether a grouping of this kind is to be ignored while those more concerned with the day-to-day working of the political Parties are deferred to by the Government?

4.47 p.m.


My Lords, I rise to take part in the debate having sat through every single one of the long hours and nights we spent debating the formation of the Bill itself. I hope that I shall not irritate the noble Lord, Lord Mackie of Benshie, by speaking for too long, but I want to say quite categorically that I agree with every word that has been said in the debate this afternoon by my noble friend Lord Campbell of Croy, by the noble Lord, Lord Strathclyde and by the noble and learned Lord, Lord Wilson of Langside. Indeed, those noble Lords have said much that I thought I might have said. However, I shall refrain from doing so and merely say that I support everything that they have said. I should also like to support very strongly the request by my noble friend Lord Campbell of Croy regarding details of the conduct of the referendum and the voting. I am sure that those matters are of some considerable importance.

Like many noble Lords, I, too, have read the debate in another place on 22nd November. However, up until now only the noble Lord, Lord Wilson of Langside, has mentioned the question of propaganda and whether or not it will be dealt with on the Party political basis or, as I personally think it should be, as a matter which is not Party political but confined to those people of all parties who want to support the Yes campaign or the No campaign. I shall support, as strongly as I can, the No campaign, but the fact that it is composed of people of all walks of life with different political backgrounds means that we must ask for a very strict and fair use of broadcasting time.

I also was surprised and interested at the references made in another place to the time for broadcasting. I think that to date—perhaps not intentionally—more broadcasting time has been devoted to the side of the Yes campaign. It is very important that whoever is in charge—and we all know who is in charge of the Scottish BBC—should be told categorically that a fair distribution of time for "Yes" and "No" is absolutely vital. That will have far more effect than anything else.

What the noble Lord, Lord Strathclyde, said about people not understanding the Act is absolutely true. After we had spent hours, days and weeks here debating the Act and after the other place had also discussed it, I—as I have no doubt have many other people—have been discussing it with the ordinary people with whom one lives and works in the community. Noble Lords will be surprised at how totally ignorant are those people about what the Act says. They think in terms either of Scottish nationalism or nothing at all—the status quo. When one tries to explain what the Act proposes to do and what the result will be, it comes as something completely new to them. That is partly because the media in Scotland—not only the BBC but one of the newspapers—are very strongly in favour of the Act. The Scotsman is more or less a propagandist newspaper for the Act. Not so the Glasgow Herald, which is quite a different newspaper. However, one must look at these matters quite fairly. If we want there to be a fair vote, we must put over the information to the public in a way which they can understand. I am not accusing the Government on this particular point of the referendum of being anything except extremely fair. I think that the noble Lord, Lord Kirkhill, was entirely fair and I think that what was said in the other place about the way in which the referendum would be conducted was entirely fair.

The rules laid down governing the ordering and voting in the referendum are perfectly fair and just; they are based on our General Election procedures. Nevertheless, I hope that the time, the explanation and the use particularly of broadcasting will be looked at, and I hope that the Government will take the advice of your Lordships' House and view this not on the basis of Party political broadcasting but on the basis of the "Yes" campaign and the "No" campaign, ensuring complete fairness between the two.

I suppose that it is now too late or, rather, not right, to comment on the actual voting. However, it is a pity that the voting will be entirely confined to the Scots people who are in Scotland on 1st March and who are entitled to a vote there. For business reasons, educational reasons or other reasons a tremendous number of Scots will not be in Scotland on 1st March. I think that it is hard that they should not be allowed to vote, especially in view of the fact that in Scotland on 1st March there will be thousands of people who are not Scottish at all, who are there for work or business purposes, and who will be entitled to vote. Hundreds of thousands of Scots, who care desperately about the United Kingdom and that Scotland shall not in any way be divorced from England, will be unable to vote. I imagine that it is too late to do anything about that, but I express that as my own view.

I also entirely agree with those who have stressed the enormous expense which all this will involve. Again, I do not think that the public in Scotland really appreciate this. They ask questions, but they have no idea what this will all mean in terms of expenditure. As I have said many times—and I cannot help repeating it—there is this ridiculous business of having five tiers of government in Scotland for five and a half million people, beginning with the community councils and ending with the vote for the European Parliament. Surely that makes a travesty of democracy; or, rather, it makes democracy run mad, and I think this is just as bad as anything else running mad. It is crazy to have so many tiers of government. That is one reason why I am strongly opposed to this Act. It simply adds another tier of government to our already overburdened voters in Scotland.

The question which has now become associated with West Lothian because of Mr. Tam Dalyell is one which, to some extent, we, in this House, tried by our Amendment to one of the clauses in the Bill to alleviate. However, it is absolutely ridiculous that our 71 Members of Parliament at Westminster are unable to vote on the subjects in which their own constituents are deeply involved, and to have so many of those matters devolved to this new Parliament with 150 members. That is a matter about which the noble and learned Lord, Lord Wilson of Langside, the noble Lord, Lord Strathclyde, and others have spoken. It is quite insoluble and altogether wrong because it will create great complications between England and Scotland. I am deeply opposed to this, and it is one of the question to which I cannot see any solution if a "Yes" vote is the result of the referendum.

Finally, as I have said before in your Lordships' House, I suppose that I live nearer to the English Border than anyone else; or, at least, I am one of your Lordships who live very near to the English Border. I know that those living in the Borders of Scotland go backwards and forwards into Cumberland and Northumberland and other Border counties of England every day of their lives. They are mostly not conscious whether they are in England or in Scotland, because their interests are the same. If they are farmers, they go down to the markets at Carlisle and Longtown; if they are foresters they cannot see where the forest in Scotland ends and that in England begins, because it stretches right across.

I can see no reason at all for devolving and splitting these interests between England and Scotland. They are indissolubly bound together. If there is a "Yes" vote in the referendum and this division is begun, it may not affect the people in Caithness and Sutherland, because they are a long way away, but those who live in the six or seven counties in the Borders of Scotland, will be affected. I am sure that they will all vote "No", but I also think that a "Yes" vote will be a disaster for them. Therefore, I very much hope that we shall find a resounding "No" vote when the referendum is held.

4.59 p.m.


My Lords, I apologise for intervening in the debate as I was not present at the beginning. I have been out earning my living, such as it is; I arrived as soon as I could. The noble Baroness, Lady Elliot of Harwood, with a great deal of grace, seniority and dignity, has said that she will vote "No" in the referendum. I should very much like to vote "Yes", but I have no vote as I have lived in the Hampstead Garden Suburb for a while and, by the decision of this House and the other place, I have no voice in this matter. That argument is over and I accept the majority verdict with as good a grace as I can muster.

However, I think that the Scottish people would like to have a greater voice in their own affairs than they have had. at least since 1707. I am rather inclined to think that they should have it. What the Welsh do is up to them; they are a different people and a different race. But my judgment is that the Scots would like to have a say in their own affairs, and I think that their own affairs have been somewhat neglected, albeit with the best will, by Westminster. That might well be remedied by a "Yes" vote in the referendum. I may be wrong and time will show whether or not I am.

The noble and learned Lord, Lord Wilson of Langside, whom I supported earlier in our debates—and supported gladly although to my disadvantage—cited a prestigious group of Scots who were on his side. I speak only for myself, and such members of my family who are Scots, and have been Scots as long as they have had life to live. They see Scotland as distinct and different from England. Associated with England, friendly towards England, but a different place; a different culture with a different view of how things ought to be done and how things ought to be arranged; with a different kind of dignity of their own. They may be wrong, but the point is that, whether they are right or whether they are wrong would it not be better that they had the right to decide the matter for themselves?

We in this place, and especially down the Corridor in another place, see ourselves as politicians. We are, in a sense, special. We have a special expertise. We know. What we mean when we say "We know" is this: we know what is right for other people. The essence of politics very often means trying to persuade other people to do things they do not want to do. That is excellent; but because our business consists of persuading people to do things which they might not want to do, that should give us pause. If people do not want to do something which we politicians want them to do, it might be because they are right and we are wrong.

It is hard for experts such as we are to admit that we might be wrong and the ordinary people might be right, but nevertheless it is so. In any kind of democratic situation, if there is any kind of division of view between the administrators—if that is what we are—or the advisers of the Administration, which is perhaps better, and the people themselves, it might be a good thing to ask them what they want. It might be that there is a kind of activist wisdom lodged in the people which is not lodged in the administrators. It might be that when the people know what they want they are right. So why are we so fearful of asking them? Why are we so fearful of asking the people? Is it possible that we are fearful of asking the people because we might be unable to persuade them? Of course that is it.

The whole point about our democratic system is that hitherto we have tended to allow people to elect a Government, or throw out the rascals who happen to have formed the previous Administration, and they have done so on a generalised conspectus of policies carried out, or not carried out, and policies promised in the future. The people make this decision, and it is their right. They make this decision quite properly, but they make the decision to keep the Government in, or throw them out, on a kind of tangle of policies in which one policy has a certain weight and another policy a different weight; the standard of living has a kind of weight; the relationship to Europe a weight; foreign affairs has a weight; all kinds of things have different weights. What on earth can be wrong with going to the people with a specific item and saying to them, "Do you think this is right, or this is wrong?" and then doing the thing that we politicians almost always fail to do, and that is argue the specific item out by itself.

In a General Election we argue the specific items in four or five minutes of a speech which is devoted to the general theme, and the specific item gets lost in the general policy. What can be wrong in going to the people and saying, "We think this policy is right. Support us, or reject us." Argue that policy by itself, and say that Scotland should, or should not, have this, that, or the other element of self-government; and say to the people, "Support us, or reject us." What are we afraid of?


My Lords, would my noble friend allow me to intervene? Having missed the beginning of the debate, I think he may be under a misapprehension. Nobody in the Chamber is against holding a referendum. What they are concerned with is that the issues are extremely complicated, and that somehow or other what the issues are ought to be put fairly to the people.


My Lords, the chances of my being misinformed are enormous, and the chances of my misunderstanding are even greater. But there is no problem here. Let us be serious about it. We are not talking about informing the people. Everybody knows that people who oppose the referendum oppose it by itself, and not because the people might be misinformed. They just do not like the idea of going back to the people. I know that nobody will admit this. I do not blame them. I would not expect them to admit it, and I would not be surprised if they did not admit it, but the fact remains that we have to tell the people. We have to argue our case to the people. What could be wrong with that?




I am glad to have taken my noble friend with me.


My Lords, may I intervene once again? I think I was one of those who advocated a referendum on this matter four or five years ago, and was one of the first to do so, yet I am whole-heartedly opposed to Assemblies in either Scotland or Wales.


My Lords, I am glad that my noble friend is in favour of meeting the people. Indeed, I am not surprised that he is, because he strikes me as being the kind of democratic man who would be. That is not really the point. The point is whether the people of Scotland should have the right to some kind of decision-making in their affairs. Why on earth not? The Scots are actually real. They are not English.


My Lords, as the noble Lord missed the beginning of the debate, perhaps it would be helpful to focus his mind again. We have all agreed that we must have a referendum. It is in the Act. We have all agreed that the referendum is on whether or not this Act shall come into force. It is not whether in principle there ought to be an Assembly, or whether in principle Scotsmen should decide things for themselves. It is a very narrow issue, and perhaps if he had attended from the start he would have got this point.


My Lords, I should love to have attended from the beginning, and heard the noble Lord. I have no doubt it would have been helpful to me. However, I had other things to do, and this is a fact of life, and it will not prevent me from saying what I have to say, whether the noble Earl cares for it or not, and whether indeed it is relevant or not.

Several noble Lords

Order, order!


The relevance of it will appear at the end. I am sorry about that, but there it is. I believe in fact that the principle of the referendum, carried as far as it can be, is a principle of democracy that we should support. I believe further that the Scots ought to be asked what they wish.

I want to say something very simple in conclusion, because I am aware of the fact that, having missed the earlier part of the debate, I am at something of a disadvantage. I do not need to be reminded of that. Indeed, that was my opening remark. My final and concluding comment is that I do not think that the Government should pay any attention at all to the 40 per cent. item which has been interjected into this matter. I say that for the following reason: should it fall out that the Scottish people say "No" in this referendum, I do not think that the 40 per cent. of electorate, however that is calculated and with whatever difficulty, is terribly germane. A "No" vote would, to my mind, be a "No" vote and would be acceptable in any circumstances, no matter how many people took part in the voting.

Difficulty arises when we come to a "Yes" vote. The 40 per cent. matter becomes of importance only if the vote is close: if the vote is not close, then it does not matter. whether 40 per cent or 20 per cent., or whatever figure, voted. Should it turn out to be a close vote and the 40 per cent. parameter is not met, then we should remember with care that the referendum is advisory, and at the end of the day both Houses of Parliament must make up their minds, and in doing that they must be very careful. What must they ask themselves? If the Scots vote "Yes" for their Assembly, a very modest request and one which Ireland had for a long time without too much alarm occuring in the United Kingdom, but it so happens that they do not actually make the 40 per cent.—say, if it is 38, 39 or 37 per cent.—then, if we get too pedantic about it, we shall be very silly. If we are silly we will say to the Scots, "We do not care what you think. We are pedantic and arithmetic. "If the Scots vote "Yes", no matter by what proportion, it should be "Yes" and they should have it. If they vote "No", then by no matter what proportion they vote it should be "No". I support the order. I hope the House will support it, without quibble and right away.

5.12 p.m.


My Lords, I confess that I was not sure what that last speech by the noble Lord, Lord Howie of Troon, my fellow Ayrshireman, was all about, except that there was a hint of UDI for Hampstead at one point, after which I rather lost the drift of what he was saying.

I rise briefly to say that I stand alongside the noble and learned Lord, Lord Wilson of Langside. I would use the ghastly cliché that I "stand up to be counted", but I am so weary at all the blether that has gone on that I think I shall have to lie down to be counted. So much rubbish has been spoken and so many clichés trotted out among some words of wisdom that I must point out that all the references to "the Scottish people" make me ask who "the Scottish people" are. They are something like 20 per cent. Paddies. A lot of Glasgow and half of Stornoway is Pakistani. The amount of rubbish around which some pearls of wisdom have sparkled is almost beyond counting.

Frankly, I am worried, if we get an Assembly, about the quality of Assemblymen we shall have. In our districts and regions and the old county councils we have been well served by the very best people available to us, both in towns and particularly in the country areas, with which I am most familiar. Nor have we been badly served at Westminster, though some might have reservations about that. I am rather worried lest we may get a "third XV representation in this tier of government. I rise simple to say that I wish to be counted, and that I share the views of other speakers who will be praying and working for a resounding "No".

5.14 p.m.

The Earl of SELKIRK

My Lords, the noble Lord, Lord Kirkhill, wedded his remarks to some extent to mathematics but he was studiously vague in the way he handled them and I hope we can be given an assurance that certain questions arising in that context will be answered at some date. Referring to deaths, what he said may be a guess. As for the under age question, I should have thought that that would be a precise figure which the returning officer must inevitably know in any case: otherwise the return will not be correct. As for penal institutions, I confess that I was surprised that the figure was not precisely known, and I should not have thought that it would present much difficulty. The question of more than one registration may provide difficulty, I agree. I simply want to know when we shall be told how the calculation will be made and how we can be sure there will be a certain precision about it. It is vital there should be no dubiety in this matter, though I think it is a small matter. My guess is that it is about 5 per cent. in 2 million; I cannot be sure, but I believe it is of that order. As I say, there should be no dubiety and we should be quite clear as to how these figures are reached.

5.16 p.m.


My Lords, I shall be brief. My main point is that this whole operation will prove devisive for Scotland. If the 40 per cent. is achieved by the people who want "Yes", others will say the Government have been less than neutral in their use of the Government machine. If the enthusiasts for this Act do not get their 40 per cent., they will say, "We wuz robbed". If politics is the art of choosing between the unpalatable and the disastrous, the Government have managed to set a new standard on this occasion by choosing both.

I believe this scheme is divisive in principle, and that that must be got across to the people of Scotland. The Assembly is bound, if set up, to covet the regions' rate-levying powers and the regions are bound to covet the Assembly's disposal of the rate-support grant from within the block grant. That will be a first source of bitter division within Scotland. It will have no bearing on Party; it will be a division of a new and damaging kind. There is the difference—I put it no worse than that—between mainland Scotland and the Orkneys and Shetland: whose oil is it? The matter has been left somewhat in mid-air, but it is a source of division. The Borders, Buchan and the Highlands will have, and do have, quite different interests within Scotland from those of the industrial belt, dominated by Strathclyde and suspected in those areas of being dominated by the Glasgow-Irish—whatever that may mean.

I believe that everybody in this House—at any rate everybody who has listened to the whole debate—agrees in welcoming the Government's acceptance of the need for a considerable time for the campaign. In the interest of good conduct and good order, we all need to watch this aspect—by which I mean the activities of the Civil Service and Government machine—very closely.

During the coming year, we shall be voting until we are sick of it. There is not only the referendum ahead; but there will be local government elections, European elections and, inevitably, a General Election. It will be difficult to prevent the campaigns relative to any of those overlapping and, at that point, it will be most important that, so long as we are concerned with good order and Government, we all, whatever our Party watch with care. The Government must be seen to be fair. There are at present among your Lordships—this applies to some of us certainly, and I think in all quarters of the House—those who are less than sure that the Government's use of the Civil Service machine will be whiter than white. If there were any Government weighting—using influence through the Governmental machine—that would be constitutionally poisonous. I would remind your Lordships that modesty, once vanished, never returns. All irregularity is catching. If there were the slightest deviation from absolute neutrality by the Government it would be said by many and feared by more that we were slithering down a very dangerous totalitarian slope to a situation where all that is not compulsory is forbidden.

5.20 p.m.


My Lords, I hesitate to intervene, but I wish to mention a matter that has nor yet been mentioned in the debate. Today we are essentially discussing the order for the referendum, specifiying the date, and, in general, the mechanics of the referendum. We are agreed that there should be a referendum. We are agreed that it should be consultative but there is what the Secretary of State called the "hurdle"; namely, the 40 per cent. of "yeses" that there must be if the Secretary of State is not to have to lay an order annulling the Act. Surely that means that there will be terrific pressure to bring up the Yes vote as high as possible. As I understand it, the Government have said that they are backing the Act—after all, they passed it—and that they expect all Members of the Government to do the same. If one carries that a little further—and without being able entirely to unravel what the Government do and what the Labour Party do—one arrives at the position that it will be in the interests of the Government to get as many people to the poll as possible.

Here I come to the matter that has not yet been mentioned in the debate. It is not surprising that it has not been mentioned because the Schedules are very complicated, and in order to understand them all one would have had to have read the entire Act of 1949, plus the Acts of 1969 and 1977; and even then one could not be quite sure. I want to refer only to Section 89 of the 1949 Act, partly because it has been amended I think twice over in each of the following Acts—and thus I personally am not quite certain how it stands at the moment—but mainly because it deals with the restrictions on conveyance of voters. Regarding Section 89 the order states, In subsection (3), for 'the election of a candidate' substitute 'a particular result at the poll'. There is a very great difference between working for the election of a candidate and working for a particular result at the poll. I am doubtful whether the same rules should apply. I am also doubtful as to what the rules are to be, and I ask the noble and learned Lord to deal with this matter when he replies to the debate.

Considering the divisions between the Parties on this matter, if what is proposed is to work fairly it ought to be abundantly clear that there should be no compulsion on the various Parties in the various constituencies to work for a particular result. If it does not proceed in that way, there will be Party pressure to get a particular result in what is supposed to be a free vote for every individual constituent and in that case it will not be a free vote. People have Party loyalties and they will be influenced by that. It will be difficult enough to ensure that they know what they are voting about. Most of them will not know very clearly; most of them may be tempted to take their Party's advice. If the whole matter of conveying the electors to the poll is to be completely organised by a Party, especially in this case by the Labour Party because of the Government backing behind the matter, then I am not certain that the rule in question will really be applicable in the case of the referendum.

I take it that what is intended is that no one should pay to hire a vehicle, and I am sure that that is right, whether one is paying in order to further the election of an individual, or to achieve a particular result. The organisation of conveying people to the polls will be almost crucial in the referendum. It will be very important indeed and I suggest that it needs further study.

5.25 p.m.


My Lords, some noble Lords, joined by the noble Baroness, have rehearsed the broad arguments that have been advanced over the past 10 years, and especially here over the past nine months, about the general advantages and disadvantages of this particular scheme of devolution. In the context of replying to this debate on the order, I do not see it as my place to reply to those general arguments about the cost, about democracy, about the threat of nationalism, and so on. I take the view which the noble Lord, Lord Drumalbyn, has just taken: We are looking at technical matters in relation to the order and, accordingly, I hope that the House will understand if I confine myself to trying to reply to the points made which I see as relevant in that context. The words "the Scottish people" have been used. On many occasions I have said that that is not an appropriate phrase to be used here. We are talking about devolution which affects the people who live in Scotland at the time when it comes into force. In the context of the order we are talking about the people who were resident in Scotland and entitled to vote on 10th October 1978.

I shall try to deal with the points in a fairly orderly fashion as best I can, but initially I wish to deal with the point made by the noble Earl, Lord Selkirk, when he asked for a much fuller answer in relation to the figures. He must understand that the register, on the basis of which the referendum is to be conducted, is still a draft register. It was published in the last few days. It is available for correction and alteration right up until the middle of December 1978, and it does not have to be published until 15th February, 1979. My right honourable friend the Secretary of State has asked the persons responsible to advance the date of publication, but until we have a register which is corrected and becomes "the" register, we cannot begin to count the precise figures in relation to those who are under age. Once the register is available, that count will of course be done absolutely accurately.

I now wish to deal with other instances, though not with every particular point. If we take the question of the penal institutions, we find that exactly the same point applies. We do not yet know who will be in prison on 1st March, 1979. We hope that we ourselves will not be in prison, but one can never be sure. Secondly, we can make no correlation between those whom we are reasonably certain will be detained in a penal institution on that date, with the register, because the register is not finalised. Further, the tragedy is that even after 15th February, some persons who are entitled to vote in Scotland will be detained in English penal institutions, and some persons not entitled to vote in Scotland will be detained in Scottish penal institutions. So we just cannot do a head count on the night of 28th February and say, "These are the persons." It must be a fairly exact count, and we hope to achieve that, but at the end of the day there must be an element of estimation—

The Earl of SELKIRK

My Lords, will we not get the figure until after 1st March?


My Lords, as soon as may be after 15th February, 1979 my right honourable friend the Secretary of State for Scotland would like to be able to give an indication of what the then information leads him to believe is the approximate figure. But of course, he could not possibly go further than that.

Perhaps I might mention just one other example; that is, the matter of deaths. The noble Lord, Lord Campbell of Croy, said that we must be able to count the deaths. Once again, some people who are on the Scottish electoral register do not die in Scotland. They might die in Peru; they might die at sea; there might even be medical difficulties as to whether they were alive or dead. There is also the point that they might be presumed dead by a decree of court. These are all difficulties which make it quite impossible to be exact; but before the noble Lord rises to correct me I would accept his second position that we should attempt to get accurate figures, and we hope to be very nearly accurate.


My Lords, I tried to be as brief as I could be in my earlier remarks. I accept that it is a matter of time. If one wants to be able to announce the result within two days, then of course one cannot take into account every death; but in due course it would be possible to get an almost exact figure, because even deaths abroad would eventually be registered in Scotland. I refrain from speaking any further on this because there is an expert on this in the House at this moment who has been in the Home Office and who will know, as will his equivalent in the Scottish Office, the difficulties that arise; but I am informed that this could in fact be done if enough time were left. However, I also accept that, if it is a close thing, people will want to know the result pretty soon.


Certainly, my Lords, I gave some thought to this matter myself, and I am satisfied that it is impossible to give an absolutely accurate figure when one takes into account the presumption of death, deaths abroad, deaths at sea and the medical question I mentioned. So one is going to end up with a slightly inaccurate figure which could not be made accurate for, perhaps, years after the date; and, of course, having regard to the wording of Section 85 (beginning, as I recall, with the words, "If it appears to the Secretary of Stale") no such precise degree of accuracy is thought to be called for.

I thought that the noble Lord, Lord Campbell of Croy, in opening his own speech, was rather more muted in his welcome than his honourable and right honourable friends in another place, because they made it quite plain that they welcomed the order. Indeed, if I may paraphrase, the honourable gentleman Mr. Brittan, said that it was right that the people of Scotland should have the opportunity to express their views on the Government's proposals, and he went on to warmly welcome this particular order, as indeed he welcomed the similar order for Wales.

The noble Lord also wondered why we did not have a different question, or suggested that it would have been better had we had a different question. He said that the question here is not, "Do you want devolution?", nor, "Do you want the Assembly?", but is a question about the provisions of the 1978 Act. That kind of question—"Do you want devolution?", or "Do you want an Assembly?"—would not be a sensible and proper question to ask, because if the noble Baroness, Lady Elliot, or the noble Lord, Lord Home of the Hirsel, were asked, "Do you want devolution?" I have no doubt they would say "Yes", but they do not want this particular scheme so they would say "No" to this. The only fair and proper question, having regard to the fact that there is no such thing as devolution in principle or in the abstract, is to ask them, "Do you want this scheme of devolution?", and the best way to ask that is to ask the question posed in Schedule 17.


My Lords, I apologise for asking the noble and learned Lord to give way again, but it is very important because he has completely misunderstood what I said. I was not suggesting that the question should be different; I was just saying that at present one found in Scotland many people who thought that the question was going to be different. They think that the question will be, "Do you want devolution?"; they think that the question of the ballot paper will be, "Do you want an Assembly?", or something like that. Therefore, the campaign period is needed in order to enlighten them as to what is the actual question. That was my point. So the noble and learned Lord did, I am afraid, misunderstand me. I was not suggesting that there should be a different question: I was simply saying that unfortunately there is a great misconception in Scotland at the moment about the actual question.


My Lords, I recall that in 1975 a great many people thought the question was, "Shall we join the Common Market?", when of course we were already in. Part of the purpose of a referendum campaign is to educate the electorate, and I am quite confident that the noble Lord who has just intervened will play his part in educating the electorate, as I hope to do myself. I am certainly not one of those who agrees with the suggestion which has been made several times today, that people in Scotland do not understand. In the first place, I myself have addressed a number of meetings. I do not think that has necessarily enlarged the understanding of the members of the audience; but I find that, when they come to ask questions, the questions betray a considerable understanding and have often put me in difficulties and revealed my own lack of understanding of particular details of the Act. But I have not found that the audiences are uneducated.

Secondly, some criticism has been made of, or certainly observations have been made about, the Scotsman newspaper. Whatever view one may take of the side it took in the argument, it cannot be blamed for publishing day after day the fullest possible reports (accompanied by some quite unflattering photographs) of, for example, the proceedings in this House. One cannot blame the Scotsman or the media if the people in Scotland are not properly informed as to what the debate is truly about; but I in fact believe that they are truly informed. Certainly, if they are not, it is our duty in the course of the next few months to ensure that they are informed. That is the purpose, partly, of the referendum campaign.

My Lords, the noble Lord, Lord Campbell of Croy, raised questions about the role of Ministers. I think the position of Ministers has been made absolutely clear. Under the provisions of Schedule 17 to the Scotland Act, of course, money cannot be spent from the Consolidated Fund. Accordingly, if Ministers take part in the campaign they cannot use Consolidated Fund monies for that purpose. If, however, they are simply explaining Government policy, then they may use the ministerial car to travel to the destination at which they have to make their ministerial statement. If they are speaking in their role as Party politicians, or indeed as supporters or opponents of the referendum regardless of what view the Party itself may take, then they must pay their own way and get there under their own steam. I myself have already talked in both capacities, and I have not found any great difficulty in making that distinction. Nor, I think, would other Ministers.

In relation to the public service as a whole, I think that, again, the position is quite clear. As the noble Lord, Lord Campbell of Croy, will certainly be well aware, there are grades of civil servants who are not entitled to take part in any kind of political activity, and there are grades of civil servants who are free. They are described as the politically free. They include the senior deer stalker, various museum attendants and an assortment of others—a delightful list which it would take too long to read tonight. But I think the distinctions are well understood, and normal standard practice will apply.

In relation to the control of expenditure, the noble Lord, Lord Campbell of Croy, asked me particularly why it was that we could not introduce the same kind of control as was introduced for the referendum in 1975. My Lords, the referendum in 1975 was conducted under the Referendum Act 1975, and Section 3 of that Act provided that the Lord President of the Council could make grants of money to two organisations—namely, Britain in Europe and the National Referendum Campaign—and annex certain conditions thereto. This gave him a statutory basis for attaching a condition that they should publish the details of where their money came from and where it went. There is no such statutory basis in the Scotland Act 1978, and I think that is the answer to that particular question that the noble Lord asked me. There were in 1975 two umbrella organisations: now there are several organisations which call themselves umbrella organisations, but it is impossible to get the same pattern as one had at that particular time.


My Lords, will the noble and learned Lord allow me to interrupt him? Is it not the case that at the time of the European referendum there were four or five organisations shaping up, and then the prospect of Government help being split equally had the effect of fusing both sides? Surely the same would happen even now if the Government cared to introduce legislation to make that possible.


My Lords, the important phrase which has just fallen from the lips of the noble Earl is, "if the Government cared to introduce legislation". Does he really imagine that we should put off the referendum to allow a further Bill to be brought forward in order to deal with that relatively small matter?


My Lords, the noble and learned Lord asks me whether I imagine that could be done. This could be a one-line Bill, and could be got through each House in one day.


My Lords, the length of the line might be very considerable. Given today's experience, the time taken to consider it might be substantial indeed. May I just reply to my noble friend Lord Raglan, who was hurt to find that this order was being taken on a different day from the Welsh order. Of course, the reason was that we had no idea how long either of these debates might last, and we were fearful, on the basis of a sound experience, that any debate about devolution in Scotland might go on and on. Not the Government spokesmen, of course, but others might take an undue amount of time, and for that reason it was thought better to separate these two orders. There was no representation through the usual channels that we should not do so. The noble Lord, Lord Campbell of Croy, also feared the possibility of an invisible Government subsidy. I think that, having regard to the terms of Schedule 17, paragraph 5, there is no likelihood of an invisible Government subsidy here.

I was asked by the noble Lord, Lord Mackie of Benshie, about an explanatory leaflet. I know that we have discussed this matter from time to time and have come to the conclusion that we could not possibly write an explanatory leaflet in terms that would not arouse the ire of at least one side of the argument and probably the ire of all and sundry. Accordingly, prudence dictated that there should be no explanatory leaflet and, accordingly, there will be none. The noble Lord, Lord Strathclyde, drew attention to the fact that by the referendum procedure, Parliament, he thought, was surrendering its supreme position. I can only reiterate what has been said by a number of others in this debate. Parliament is using this particular device but is reserving to itself the right to look carefully at the advice that comes from the electorate in the form of the result. Everyone is agreed that a referendum is purely advisory. There will be no surrender and there is no constitutional, legal or technical surrender of sovereignty under the Scotland Act 1978.

The noble and learned Lord, Lord Wilson of Langside, called for the people in Scotland to be fully informed. I reiterate that we should like to see them fully informed; and this referendum campaign should allow that to take place. I think that I can spell the word that gave him such difficulty. It is "s-c-h-e-d-u-l-e"; but there is the other word he used, "clamjamfery"—and I supply the spelling of that for the benefit of the noble Lord, Lord Drumalbyn.

In relation to broadcasting time, a subject which has exercised a number of your Lordships and is a serious matter, we are in something of a dilemma because, on the one hand, one is anxious to ensure that this most important of the media should not appear to take sides; but there is another important principle and that is that the Government should not interfere with what the BBC and the IBA do. I would remind your Lordships that in the statute constituting the IBA, and in the Independent Broadcasting Authority Act 1973, there are provisions making it the duty of the Authority to satisfy itself that it is impartial in the presentation of controversial issues. And, of course, there is similar provision from an earlier date dealing with the BBC. There is a statutory duty. I should have thought that this House, recognising the desirability of impartiality and the undesirabilily of the Government interfering with these bodies, should be satisfied to leave the BBC and the IBA to make their own arrangements and to conduct themselves as they have done in the past in relation to such matters.

I come finally, I think, to the matter raised by the noble Lord, Lord Drumalbyn—but I think he really answered his own question. We are only concerned with Section 89 of the 1949 Act, and the application of it in the Schedule to this order, with the restrictions on the conveyance of voters in hired vehicles. There is nothing in Section 89, as amended for the purpose of this referendum, to signify that there is any compulsion on any person or Party to behave in a particular way. I hope that I have dealt with all the points raised and I repeat to the House the commendation of this order.


My Lords, before my noble and learned friend sits down, can he come up with an answer why some people are so privileged as to have two votes in the referendum?


My Lords, I am sorry that I did not deal with that point. Nobody has two votes. Some people are entered twice on the register but it is a criminal offence to vote twice. Accordingly, no one is entitled to vote twice. The reason why some people are privileged to have two homes and therefore to be registered twice is another matter with which I will not detain your Lordships.


My Lords, before the noble and learned Lord sits down, can he help me on this? I understood him to suggest that we should accept that the broadcasting authorities should be left to their own devices without interference by Government or otherwise so far as the conduct of the referendum campaign is concerned and that we should leave it to their statutory duties to regulate the matter as they normally do. Surely that is not the position when a General Election or, indeed, a by-election is taking place!


My Lords, in this instance, this is not a General Election and not a by-election. I simply rest on the point that I have already made. It would be a bad precedent if the Government were to say to these authorities, "Do this!" or "Do that!" Their position is perfectly clear. The IBA and the BBC have both existed for many years. From time to time, in the heat of a campaign, it is sometimes thought that they have behaved badly; and everyone who hears his opponent on radio or television is bound to think that that particular broadcast is biassed. Invariably, such criticisms are followed at a later date by apologies and acknowledgments that there has been an equal distribution of time and talent. I think that we can rest on that for the purpose of this matter.


My Lords, would the noble and learned Lord care to say why he thinks it appropriate that the broadcasting authorities should not be left to themselves as to how they deal with a General Election campaign as it is proposed that they should be left to themselves in the case of this referendum for the people who live in Scotland?


My Lords, I am not talking about what directions, if any, the Government can give or should give or do not give at the time of a General Election. It does not arise on this order.

On Question Motion agreed to.